Facts
The respondent [A.] , born in 1959, has been working for [B. AG] , the Swiss licensee of [D.] , since 1 May 2014. On the one hand he works as a chauffeur and on the other hand he earns brokerage commissions for driving orders, which are paid out by [B. AG] .
The Swiss Accident Insurance Institution (Suva) classified the activity as a limousine chauffeur as employed on 4 October 2018. The Compensation Fund of the Canton of Zurich held, by decision of 18 October 2018 and objection decision of 11 December 2018, that the income earned through 'brokering limousine services' also counts towards the relevant income.
The Social Insurance Court of the Canton of Zurich partially upheld the insured person's appeal by decision of 23 October 2020. It found that the brokerage commissions for the acquisition of tourist services and limousine trips count as self-employed income. For the remainder, it dismissed the appeal.
The Compensation Fund of the Canton of Zurich filed an appeal in public law matters and requested that the activity as broker of limousine services be classified as employed and that the objection decision be confirmed. The respondent requested dismissal. The Federal Social Insurance Office waived a response, and [B. AG] did not submit a position.
Subject matter of the dispute: Old Age and Survivors' Insurance (AHV); the employed classification of the chauffeur services is undisputed. It is disputed whether the lower court violated federal law by classifying the activity as broker of limousine services as self-employed gainful activity.
Findings of the lower court: The respondent acts as broker of services of [D.] predominantly in non-European countries and carries out customer acquisition and brokerage partly on site. Invoicing to end customers is carried out by the individual members of [D.] ; [B. AG] settles the brokerage remuneration. The respondent employs no personnel of his own and has not rented his own business premises. He bears annual business costs of approx. CHF 30,000.- (approx. CHF 2,500.- per month). The lower court considered the subordination and the degree of being bound by instructions to be weakly pronounced.
Considerations
The Federal Supreme Court freely reviews the contribution-law classification as a question of law (Art. 95 and 96 FSCA, Art. 106 para. 1 FSCA), whereas the underlying factual elements are questions of fact that are reviewable only to a limited extent (Art. 105 para. 2 FSCA). Where several gainful activities are pursued simultaneously, each earned income must be examined individually as to whether it is self-employed or employed in nature (BGE 144 V 111 consid. 6.1).
According to established case law, the decisive factor is not the civil-law classification of the contract but an economic assessment of the overall circumstances. A person is considered employed who is economically or organisationally dependent on an employer and bears no specific entrepreneurial risk (Art. 5 para. 2 OASIA, Art. 9 para. 1 OASIA, BGE 144 V 111 consid. 4.2).
Agents, i.e. persons who conclude or broker contracts in the name and for the account of a third party outside its business premises, are as a matter of practice generally considered employed. They are self-employed only if they cumulatively use their own business premises, employ their own personnel and essentially bear the business costs themselves (BGE 119 V 161 consid.…